Vaughan v Patrick Stevedores

[2001] NSWSC 1126

CITATION:	Vaughan v Patrick Stevedores [2001] NSWSC 1126
FILE NUMBER(S):	SC 020350/99
HEARING DATE(S):	27/11/2001,28/11,29/11,30/11
JUDGMENT DATE:	10 December 2001
PARTIES :	Francis Michael Vaughan (plaintiff) Patrick Stevedores #1 Pty Ltd (defendant)
JUDGMENT OF:	Cooper AJ

COUNSEL :	Mr A Bartley SC and Mr L G Stone for plaintiff Mr H. J. Marshall for defendant
SOLICITORS:	David Hand Solicitor, Hurstville for plaintiff Gillis Delaney Brown, Lawyers Sydney for defendant
CATCHWORDS:	NEGLIGENCE - Employer's duty to employee. - Injury to employee caused by unlawful acts of strangers on premises not under the control of employer - Foreseeability of harm - Psychiatric injury, foreseeability.
CASES CITED:	Patrick Stevedore's Operations Pty Ltd & anor V Maritime Union of Australia & Anor 144 FLR 392 Kozjak v Fairfax Community Newspapers 2001 NSWCA 37 Pacific Access v Davies 2001 NSWCA 218 Modbury Triangle Shopping Centre Pty Ltd v Anzil 176 ALR 411 at pp 415 & 416 Wyong Shire Council v Shirt 146 CLR 40 at p. 47 NSW V Seedsman (2000 NSWCA119)
DECISION:	See Summary Orders at para 168; also orders under the Slip Rule made on 12/12/2001

- 42 -

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

COOPER A J

10 December 2001

20350 OF 1999
VAUGHAN V PATRICK STEVEDORES NO 1 PTY LTD
JUDGMENT
Introduction

1   In 1998 the traditional peace of the Easter period was broken by industrial action at the ports around Australia. On the one hand the Patrick group of companies was desirous of breaking the long standing monopoly of the Maritime Union of Australia to provide waterside workers for the loading and unloading of vessels whilst, on the other hand that union was resisting the change. The moral rights and wrongs of the parties is not in issue in this case. The legal rights and wrongs of that dispute were considered by the Federal Court of Australia at first instance in a judgment of 21 April, 1998 and before the Full court of the Federal Court on 23 April, 1998. Those issues are not involved in this case.

2   In this case the plaintiff sues to recover damages to compensate him for quite severe psychiatric injuries and disabilities which he claims to have sustained when going in and out of Port Botany where he was employed by the defendant as an operational superintendent. In the course of those journeys he was subjected to quite terrifying conduct on the part of people forming picket lines.

3   In paragraph 4 of his Statement of Claim, the plaintiff alleges:-

“In April and May, 1998, whilst in the course of his said employment, the plaintiff, acting on instructions from the defendant was frequently subjected to physical violence whilst entering and leaving his place of employment at Port Botany through picket lines and as a result, has sustained injury.”


And in paragraph 5:-

“On or about 12 April, 1998, whilst in the course of his said employment, and whilst at the Defendant’s premises at Port Botany, the utility truck in which the plaintiff was travelling had its windscreen smashed by a projectile which narrowly missed the plaintiff but the fear of which caused the plaintiff injury.”

4   The plaintiff frames his case in negligence and also in breach of the contract of employment with himself and the defendant. In fact, the duties upon the defendant, whether under Common Law negligence or by contract are identical. In effect, the plaintiff alleges that in breach of its obligations, the defendant failed to take all reasonable available steps for the plaintiff’s health, safety and welfare and as a result he suffered the damage complained of.

5   The plaintiff also alleges that it was a term and condition of the contract of employment between him and the defendant that the defendant would take no steps contrary to the preservation of his interests in his entitlements to long service leave and superannuation. But in breach of this term and condition, the defendant so arranged its affairs as to defeat these entitlements and as a consequence the plaintiff has suffered loss, hurt and embarrassment.

6   Under the heading “Particulars of Negligence”, the plaintiff alleges failure to provide a reasonably safe place of work, being exposed to unnecessary risk of injury, failing to devise and ensure a safe system of work, failing to provide adequate supervision of the work required of him, instructing the plaintiff to enter upon and remain at the place of work at Port Botany when the defendant knew or ought to have known that in so doing the plaintiff was being unnecessarily exposed to a risk of injury, failure to warn the plaintiff of the danger into which he was being sent, failure to take any or sufficient steps to protect the plaintiff from harm by appropriate security arrangements, and representing to the plaintiff that it was safe to enter into and remain upon the place of employment at Port Botany when the defendant knew or ought to have known that it was not safe.

THE BACKGROUND.

7   The plaintiff first became a waterside worker in 1970 and then joined the Waterside Workers Federation of Australia (WWF) which was the predecessor of the Maritime Union of Australia (MUA). His father had been a waterside worker before him. In the mid 1980s he had been a member of a sub-committee representing WWF in negotiations with his then employer over pay and conditions of work.

8   From the early 1980’s until May 1998 the plaintiff worked only at Port Botany.

9   In 1993, the plaintiff was promoted to the rank of supervisor which made him part of the management section of the Port Botany work force. He resigned from WWF and joined the Australian Maritime Officers’ Union (AMOU), a union of management workers.

10   In 1995 he was further promoted to the position of Shift Supervisor which put him in charge of the supervisors and those below them.

11   From about 1996 he became involved in negotiating with MUA representatives on behalf of management. Also in 1996, he was promoted to the position of Operational Superintendent, a position which he held right up to May 1988. As Operational Superintendent he was on permanent day shift in charge of running the operational sections of Port Botany. He was answerable to the Assistant Manager, Mr Greg Dougall, who in turn was answerable to Mr Don Hughes who was the Manager of the Port Botany Terminal for Patricks.

12   In late 1997 and early 1998, he was aware of escalating discord between the MUA and Patricks and had seen on television workers standing outside at the end of Webb Dock in Melbourne, and security guards inside the perimeter of that Dock with the waterside workers locked out. He said the workers appeared to be confused and did not know what was happening. He was certainly aware of the increasing discord between MUA and Patricks right up to April of 1998.

13   At about 6.30 pm on the evening of 7 April, 1998, Mr Dougall came to the plaintiff’s office at Port Botany, closed the door behind him and said words to the effect -

“There is something going to happen. I would like to tell you what it is because we are friends but I can’t. I am strict in what I can say. I want you to stay by the phone and not worry. You will be looked after.”
And:-

“Something will happen tonight, I want you to stand by the phone and wait to be contacted. But you will be looked after. I can’t tell you any more.”

14   After the plaintiff returned home that night, he saw on television footage of people being locked out of Port Botany and many security guards with dogs on the wharf. He also heard that the whole work force had been dismissed. He attempted to contact Mr Chapman, the secretary of the AMOU to confirm whether this was so or not. He left messages which were not returned.

15   He waited on 8 and 9 April but was not contacted and so did not go back to work. He was however aware, during those days, that newspapers were full of news of the confrontation between Patricks and the MUA and that the tenor of the news coverage suggested great anger being vented by members of the union movement towards Patricks about the lockout.

16   On the evening of Good Friday, 10 April, 1998, Mr Hughes rang the plaintiff. The Plaintiff’s description of this conversation was (page 15):-

“In generality he asked if I had been watching what’s been going on and I said ‘yes’. I said ‘I am a little bit concerned about things’, and he said - ‘well, it looks like you’ll be going back to work on Sunday. We have a vessel, the Australian Endeavour, berthing, but I will ring you tomorrow night to verify where you will be picked up and what the arrangements are’.”

17   By this stage the news of the waterfront dispute was still headlines in newspapers and on television. The plaintiff was fully aware of pickets having been established at various Patrick operations throughout Australia, including Port Botany. He had seen photographs of picket lines being manned by MUA members and that their mood was one of anger directed towards Patricks (p.135). The plaintiff conceded that he was concerned about crossing this picket line. However, he said that he did not consider it dangerous for a person in his position in management to cross the picket line particularly as he was not a member of MUA. (p.136)

18   On the evening of Saturday 11 April, Mr Hughes phoned the plaintiff and told him what would happen. The plaintiff said that he told Mr Hughes that he was a little bit concerned about himself. Mr Hughes told him there was a meeting place arranged on the upper floor of the Eastgate Shopping Centre car part, that they would meet at 5.am on the Sunday and that there would be certain supervisors there together with new workers from a company referred to as P & C Company who were non union workers. The plaintiff told Mr Hughes that he had great concern that there was going to be trouble and asked what sort of security there would be. Mr Hughes responded that they had ample security and that they would be going into Port Botany. Mr Hughes also explained that there would be a secure bus which would take them into the workplace and guards at the workplace who would provide security in there. He also said that he had made arrangements with the local commander of Police for a police escort for the bus.

19   The conversation ended with the plaintiff believing that Mr Hughes had taken ample stock of everything and that as he had said that everything would be all right there would be no problems However, the plaintiff agreed that during his years on the wharves he had never heard of non-union labour being used for the specific jobs of loading and unloading vessels.

EASTER SUNDAY - GOING IN

20   At 5 am on Easter Sunday, 12 April, the plaintiff arrived at the upper car park of Eastgardens Shopping Centre. Some other supervisors were present together with Mr Dougall, the Assistant Manager and Mr Don Hughes, Manager of the Port Botany Terminal for Patricks. Mr Hughes had a body guard with him. There were approximately 20 men there dressed in dark blue pants, dark blue shirts and beanies. A bus was waiting and, at the direction of Mr Hughes they all embarked upon it. A marked police car arrived and the bus followed that car towards Port Botany. The plaintiff was unable to see out of the rear of the bus and so was not aware whether there was a second police vehicle behind.

21   The bus proceeded along Foreshore Road to a point near the intersection of the access road to Port Botany where it stopped. At this stage Mr Hughes and Mr Dougall walked along the bus telling everyone to close the curtains over the bus windows and not to look out so that no-one could see anyone who was in the bus. Furthermore the bus windows were tinted so that it would be difficult for anyone to see inside from outside.

22   At this stage, the 20 odd workmen pulled their beanies down and they became balaclavas.

23   Mr Hughes told all passengers, including the plaintiff, to stay away from the windows.

24   The bus then followed the police car down the access road towards the entrance to Port Botany. That access road was some 800 to 900 metres long from the corner of Foreshore Road to the gates at the entrance to Port Botany. For most of the way down the road the plaintiff could hear people shouting abuse at the bus, a couple of the windows were shattered by projectiles (one on each side). The glass did not break it merely shattered. Mr Hughes was walking up and down the bus telling everyone to keep calm. There was only one door to the bus and that was operated by the driver by means of a handle.

25   At one stage a policeman came into the bus and told the driver to keep right behind the bus so that no one could get between the two vehicles. The bus was moving down very slowly, 10 metres at a time. Those on the picket line put something beneath the wheels and the bus would stop again. The bus was being rocked from side to side when it was stopped. Men were jumping on top of the bus and hitting it with baseball bats. Paint was thrown over the windscreen so that the driver had difficulty in seeing. Mr Hughes kept telling the driver - “You’ve got to do this, step by step, step by step.”

26   The plaintiff described the atmosphere within the bus as one of fear and his own feelings as, terrified.

27   As the bus was approaching the entrance to the Port, the plaintiff saw that an additional fence had been erected outside of the original fence since he had last been there on 7 April. Its entrance was narrower than the original gate and barricades filled with water had been placed from that entrance in the new fence for some 50 metres back so as to provide a form of funnel to it.

28   It took the bus almost 2 hours to cover the 800 or 900 metres from the entrance to the access road to the main gates of the Port. During that time the plaintiff experienced great fear from the shouting, from men climbing on the bus, the banging of the bus with baseball bats, the throwing of paint over the windscreen, the breaking of the windows and the rocking of the bus. Some of the men picketing had unsuccessfully tried to force the door open.

29   Once inside the perimeter of the Port the plaintiff noticed a large number of security men clothed in black and accompanied by Rottweiler or Alsatian dogs.

THE BOLT INCIDENT

30   During that morning the head of the security firm employed at Port Botany instructed everyone, including the plaintiff that there were “no go” zones where they were not allowed to go. These were indicated by a drawing on a white board of the complete terminal area. The men had to keep some 80 to 100 metres away from the perimeter fences and had to keep approximately 120 metres away from the external point of number 3 berth

31   Also, instructions were given to the plaintiff and others that when they were inside the perimeter of the fence, no one was allowed to go anywhere without a security guard and then, if they moved around, they had to be in one of the defendant’s utilities and the security guard was to drive it.

32   During the course of the morning the plaintiff was instructed by Mr Dougall to go to the garage section and pick up one of the maintenance supervisors and take him over to the cranes to make sure that they were in running order. In accordance with those instructions, the plaintiff located the security man and they entered a utility. The security guard was driving and his Rottweiler dog was in the back of the utility. Suddenly a bolt crashed through the middle of the front windscreen hitting the driver on the left shoulder. That bolt was about 8 inches long and almost 1 inch in diameter. At that stage, they were not close to the boundary fence and it was the belief of everyone that the bolt had been projected by some form of catapult from outside the perimeter fence. The plaintiff said that that was the only way it could get there and travel that distance. (p.150)

33   The vehicle then was driven straight back to the administration section and the plaintiff reported what had happened to Mr Dougall. Mr Dougall did not require him to go back but suggested he telephone the maintenance supervisor and direct him and go to the cranes and check them.

THE AUSTRALIAN ENDEAVOUR

34   This vessel arrived during the course of the morning and as the gangway was being lowered, the plaintiff and the workman were standing nearby. Without warning, two heavy pieces of equipment called twistlocks and which are used in restraining containers, fell from the ship and landed some 4 metres away from the plaintiff. Quite understandably, the plaintiff refused to go on board.

35   Subsequently Mr Hughes arrived and the plaintiff reported to him that the employees were insufficiently experienced and also that the twistlocks had hit the gangway landing near him. He told Mr Hughes that they were not going on board. Mr Hughes then went on board and spoke to either the Captain or the Chief Officer and returned saying that they would all go up the gangway together because he had the Captain taking care of the crew. Mr Hughes then led the way on board.

36   The plaintiff was spat on and abused by the crew. Whilst on board, some of the crew members referred to him by name. They were able to name him because there were MUA members on the P & O Wharf, some 200 metres away, looking at what was happening through binoculars. One or more of those men recognised the plaintiff and called out his name over loud halers. The plaintiff had to stay on board for some time to instruct the crew how to unload the vessel. When he returned to the administration block he told Mr Dougall that he had been subjected to abuse and that twistlocks had fallen near him and that he had been identified by name. Mr Dougall told him to ignore it.

EASTER SUNDAY - GOING OUT

37   Those who had come in on the bus in the morning had been instructed to assemble at 5 pm at the administration block to join a bus which would take them out. This bus was similar to the earlier one, equipped with curtains, tinted windows and a secure single front door.

38   On the way out, the bus was subjected to the same stopping and starting as had occurred in the morning. If anything the number of pickets appeared to be greater than in the morning. The treatment that the plaintiff and others had endured in the bus in the morning was substantially repeated and it took approximately and hour and a half to get to the end of the access road. During this time the plaintiff was subjected to the same fears and terrors that had occurred on the inward trip except that on this occasion his name was called out by loud hailer and he was described as a "scab".

39   Again a police vehicle preceded the bus, which kept as close to it as possible. Again, members of the picket line stopped the bus from time to time and subjected it to rocking and blows.

40   Mr Hughes was not on board this bus but Mr Dougall was. He was in contact with the police and learned that someone was following the bus. Accordingly, the bus took a circuitous route back to Eastgardens. Eventually the plaintiff drove himself home.

EASTER SUNDAY AT NIGHT

41   That night Mr Hughes telephoned the plaintiff at his home. The conversation is described by the plaintiff thus (p.66):-

“Q. what did you say to him and what did he say to you about that?
A. I told Mr Hughes, your Honour, that I had grave fears for my safety of re entering through the picket line.
Q. what did he say in response to that ?
A. Mr Hughes commented that they, whoever they were I don’t know, but they had been in consultation with the police and it would be a lot safer to go through on the following day, that there would be more security there.
Q. Was there any further conversation then between you and Mr Hughes as to the security?
A. Mr Hughes guaranteed me and consoled me because I was still very hesitant at that time.

Q. Could you say what you said and what he said?
A. Well I said at that time, when he told me, I said - I am still not sure whether I want to re enter. I don’t feel very comfortable and it was the worst feeling I’d ever had in my life, on that previous day.
Q. What did he say then?
A. He said that he understood that it was rather traumatic going in there, that they had conversations with the Commander of the Police in that area and that there would be greater security produced on the second day and it wouldn’t be as bad as the initial confrontation. I think he used the word “confrontation - is over” and it wouldn’t be as bad …… along those lines”.

42   The plaintiff said that he accepted Mr Hughes’ assurance and he was informed that the meeting place the next day would be 5.00 am at the back of the car park behind Barton Park which is between Arncliffe and Kyeemagh.

MONDAY, 13 APRIL

43   Once again the plaintiff attended at the meeting place at 5.00 am. There was a similar number of people present as on the previous morning and the waiting bus was similar to that on the previous morning. It was not damaged. The plaintiff could not recall whether or not Mr Hughes was in attendance on this day but Mr Dougall was. Once again the bus left the meeting place preceded by a marked police car.

44   As the bus approached the access road to Port Botany the occupants were instructed to close the curtains and not look out of the windows. Once again the workmen pulled down their beanies so that they now had balaclavas covering their faces.

45   On entering the access road, the plaintiff saw through the front windscreen of the bus a large number of picketers forming a human barricade in front of the police car causing it and the bus to come to a stop. The bus was then attacked from the sides with either fists or sticks. The plaintiff was too frightened to look out but heard loud noises of banging and of his and Mr Dougall’s names being called out over loud halers. He said that there were a lot of uniformed police around but they appeared unable to clear the human barricade away quickly. The picketers were attacking the door and whilst he saw it bending, it did not break.

46   The picketers filled the area from the fences on each side of the access road. He heard comments directed to himself to the effect that they were going to kill him and that he would regret being a "king scab". This time it took an estimated one and a half hours to cover the distance down the access road to the gate into Port Botany.

47   During this trip there were police in the police car immediately in front of the bus escorting it down the access road. In addition there were other police removing people forming a human chain in front of the bus. The police removed 4 or 5 of them at a time but others quickly took their place.

48   During the course of the day, the shouting through loud hailers and threats to the plaintiff continued. The security men within the site had been directed that they were not allowed within 200 metres of Australian Endeavour.

49   At 5.00 pm all who had come in by bus that morning met near the administration block and boarded the bus to leave. Once the bus reached the gate leading to the access road, there was a police car in front of them. According to the plaintiff, the number of picketers appeared to be half as many again as there had been in the morning. Again they formed human barricades and it was a stop/start one and a half hour trip to get from the gate to the end of the access road and into Foreshore Road.

50   Once again the plaintiff was aware of a vehicle following the bus which took a circuitous route to Barton Park. When the bus stopped there, a Commodore car containing men whom the plaintiff recognised, arrived. An altercation occurred between 4 or 5 of them and Mr Dougall and a couple of other people who were alighting from the bus whilst the plaintiff was still on it. They were calling out - “We know that scab "C" is inside. He has to come out.” He knew that that was referring to him. He felt fear and helpless. He did not know whether to try and fight back. He was afraid and angry.

51   By the time the plaintiff alighted from the bus, these men had moved away from it and were arguing with Mr Dougall and another person. The plaintiff managed to leave whilst these men were restrained by a couple of the workers and Mr Dougall.

52   The plaintiff described his feelings on arriving home as inconsolable and uncontrollable. He was unable to sleep that night. He just tossed and turned. His palms were sweaty. He could not stop sweating in bed and ended up sleeping outside to give his wife a break.

53   His wife described his condition as more withdrawn than the previous night and he just did not want to talk.

54   That night, Mr Hughes telephoned him. The plaintiff said that for the initial part of the conversation he was just yelling and screaming uncontrollably over the phone at Mr Hughes complaining that there had been no protection, that the promised security had not been provided, and everything was as unbearable as it had been on the first day. He told Mr Hughes that he greatly feared for his life and for those of this family members due to the threats which had been received; and that he and his wife had received numerous threatening phone calls. Mr Hughes replied that he had spoken to the police once again including the area Superintendent for Botany and the police were going to take a more pro active part against the demonstrators and this would make entering the Port a lot easier. The plaintiff told Mr Hughes that he had spoken to the same Commander. The plaintiff said that he thought it was not safe to go back the next day. Initially, Mr Hughes asked him if he would feel better if he went in the morning and stayed there for two complete shifts to run the operation and stay overnight if necessary. After about 20 minutes conversation, the plaintiff agreed to turn up the next day.

TUESDAY 14 APRIL

55   The meeting place was again at Barton Park at 5.00 am. A bus was present as were a similar number of people to the previous day including a few female staff members. Mr Hughes was present with his body guard.

56   They drove along Foreshore Road and when near the access road the curtains were closed and people were told to keep away from the windows. Again the workmen pulled down their beanies so that they became balaclavas.

57   The trip down the access road was just as slow and terrifying as on the preceding days. Eventually they reached the gate and entered the Port.

58   During the day of Tuesday 14 April, the plaintiff spoke to Mr Hughes and told him that he would not be returning to work the next day. Mr Hughes replied that it might not hurt if the plaintiff took the day off and went to the administrator's meeting. He also said that he would ring him on the Wednesday night.

59   Again the bus left the administration area about 5.00 pm with the plaintiff and others on board. The trip through the picket line was as slow, tedious and terrifying as on the previous occasion. The plaintiff described it as - “Every minute I was on that bus was like one hour to get through the picket line.” Attacks on the bus continued. Again the pickets formed human barriers on the ground and the Police had difficulty moving them. The picketers were pelting the bus with beer cans and bottles and the plaintiff heard his name called out, together with the threat “We know where your grandson lives. He might not get home.” In addition, there were consistent threats against him.

60   He said that on this occasion, there were camera crews from Channel 10 and those on the picket line were playing up to the camera. There were women and children sitting in the picket line and being dragged away by a couple of police.

61   Eventually, the plaintiff arrived home in a condition similar to that on the preceding days. His wife described his condition as a - “mess”.

WEDNESDAY 15 APRIL - THE ADMINISTRATOR'S MEETING.

62   The plaintiff had been informed that the company which employed him had gone into voluntary administration and that the meeting of the Administrators was to be held on the Wednesday morning.

63   At this meeting he was informed that the complete work force at Port Botany had been dismissed by one of the Patrick group of companies and was employed by another of its companies of which neither he nor other employees had ever heard and that this other company was now bankrupt. All his leave entitlements, long service leave, sick leave, superannuation and other accrued benefits had disappeared. He came away from that meeting very angry towards Patricks.

64   That night Mr Hughes rang the plaintiff who expressed his anger about the way that Patricks had treated him. In this context Mr Hughes said that he and Mr Dougall were employed by a different company and accordingly they were not affected by the bankruptcy of the company which employed the other employees. This made the plaintiff even more angry towards Patrick’s. As was put in cross-examination (p.163):-

“Q. After all, you endured three days of less than pleasant work experience and abusive threatening phone calls to your family and to yourself and Patricks had done nothing to you in return. Did you feel let down about it?
A. Yes.
Q. At that stage, that is the Wednesday evening when Mr Hughes rang, it would be fair to say that there was no way that you would be returning to work on the Thursday, even if he had asked.
A. He did ask.
Q. You said - “no way”?
A. Correct."

65   The plaintiff explained that there were three factors which led him to tell Mr Hughes that he would not go back to work. First he felt betrayed and lied to and used; secondly he had been lied to about his financial entitlements after over 20 years of service and thirdly he had put his family and everyone, including himself at risk.

66   When asked about the respects in which he had been lied to, he responded (p.174):-

“I was lied to in various aspects. I was lied to continuously for 3 days in the aspect of my safety going in there, that it would be improved each day and it got, in my mind, it was worse. Secondly I felt used and abused because the operation itself really wasn’t working without me being there so I felt in a way set up in there and I also felt that I had put myself and a lot of things at risk, in people that I trusted and had faith in what they said to me.
Q. Those people being?
A. Don Hughes and Greg Dougall.”

THE BALANCE OF APRIL, 1998

67   Further incidents took place during the balance of April, 1998 which although not part of the allegation of negligence against the defendant, nonetheless are relevant as part of the background.

68   During this period the plaintiff received telephone threats to him and to his family at home.

69   On Sunday, 19 April, the plaintiff was due to play golf at the Botany Golf Club of which he had been a member for many years. Early that morning he received a phone call from one of his fellow players who advised him not to play that day because there were people armed with baseball bats waiting for him at the second hole.

70   During this period Mr Hughes contacted the plaintiff from time to time asking him to go back to work and offering him double the money if he did so. The plaintiff replied that he would not accept the offer no matter how much he was paid.

71   In the meantime the battle was also being waged in the courts.

72   Exhibit 3 is the report of Patrick Stevedore’s Operations Pty Ltd and Another V Maritime Union of Australia and Another in 144 FLR 392. This was admitted in to evidence by consent of the parties on the basis that the facts stated in the judgment of Wood CJ at CL can be accepted as facts in this case.

73   This exhibit refers to proceedings which were, as at 20 April, part heard before North J in the Federal Court of Australia. It is agreed that North J delivered his judgment on 21 April and that the judgment of the Full Court of the Federal Court on appeal from his decision was delivered on 23 April 1998.

74   It appears from exhibit 3 that on 20 April, Wood CJ at CL in the Supreme Court of NSW granted an interim injunction in favour of the plaintiffs in that action restraining the Maritime Union of Australia and others from, amongst other things, continuing with the picketing at Port Botany.

75   Without in any way seeking to canvas all of the effects of the litigation in the Supreme and Federal Courts, it can be said that one effect was to establish that probably neither party was without fault and that it was in the interests of both parties to get together to resolve the dispute.

MAY 1998

76   On 1 May, 1998, the plaintiff was asked by Mr Chapman, the Secretary of the AMOU to attend a meeting at his office at which other supervisors from Patricks would be present. The plaintiff duly attended and nine or ten other supervisors were present. Mr Chapman informed the meeting that it appeared that there could be some agreement on the dispute and that, as part of this agreement, an advance party would go on to the wharf to check the state of the equipment and to see if the terminal was operational. The members of that advance party had to be agreed between the MUA and Patricks.

77   At about 3.30 pm on the afternoon of 6 May, 1998, Mr Chapman telephoned the plaintiff at his home and told him that he had earlier met with Mr Corrigan (the Chief Executive Officer of Patricks) and Mr Coombs (the Secretary of the MUA) and that the plaintiff’s name had been approved to attend later that day at Port Botany as part of the advance party to inspect the machinery. The plaintiff was told not to take his car into the Port and that he was to go in on foot and to meet the other members of the party at the gates to Port Botany Terminal.

78   Notwithstanding his firm refusal expressed to Mr Hughes on 14 April and later to return to work at Port Botany, the plaintiff agreed to form part of this advance party.

79   He arranged to meet Mr Phillips, the Planning Supervisor at Port Botany, so that they could walk in together. In accordance with the instructions they left their car and walked together the 800 or 900 metres down the access road and met the other members of the advance party at the gate. When about half way down the access road, they were joined by a policeman who walked in front of them. At that stage, the plaintiff was aware that some form of agreement had been reached but nothing had been finalised. When about half way down the access road, there were people on each side, behind a roped off area, who were screaming, yelling and spitting at and threatening the plaintiff. There were about 100 to 200 people there and about one police officer walking in front of the plaintiff and Mr. Phillips. For some 500 metres of walking, threats were made to the plaintiff that when he came out he was dead and that he would not get out. In addition one man grabbed him. The plaintiff pushed him away. The policeman turned round and tried to calm the man down and, eventually got him back behind the ropes at the side of the roadway.

80   The plaintiff joined up with the other members of the advance party at the gate and they entered the Port where he remained for three and a half to four hours checking the machinery for his employer.

81   He then had to run the gauntlet back from the main gate up the access road. This had to be done on foot. He was offered no transport by his employer to get out and was similarly confronted on the way back by verbal abuse and threats directed at him and there was jostling. There were no police present when he left. Neither Mr Hughes or Mr Dougall was present that day.

82   By the time he reached home the plaintiff was crying and saying - “It’s finished - my job’s gone.” He was "shattered" by the thought that the career which he had enjoyed for nearly thirty years was finished.

83   The evidence of Mrs Vaughan was that her husband was even worse than he had been on the earlier occasions. She said he was getting more and more withdrawn in himself - “and I honestly thought he could commit suicide and it worried me.” She made arrangements for the plaintiff to be seen by their local doctor, Dr Howe. By this stage the plaintiff was an emotional wreck.

WAS THE DEFENDANT NEGLIGENT?

84   In considering the liability of the defendant it is necessary to appreciate that the basis of the plaintiff's claim is that he sustained injury whilst going in and out of Port Botany along the access road. Furthermore, this injury was caused by acts of persons who were not employees of the defendant and whose conduct was unlawful. In addition it needs to be borne in mind that the location at which the plaintiff claims he sustained injury by reason of the defendant's negligence was a location which was not under the control of the defendant.

85   Nonetheless it is trite law that an employer has a duty to take reasonable care for the safety of his employees and this includes times when those employees in the course of their duty are on premises over which the employer has no control. The duty to take care to employees to obviate the risk of injury from unlawful acts of others has been recognised by the Court of Appeal of this State in such cases as Kozjak v Fairfax Community Newspapers 2001 NSWCA 37 and Pacific Access v Davies 2001 NSWCA 218 as well as by the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil 176 ALR 411 at pp 415 & 416.

86   The approach I propose to take is that described by Mason J in Wyong Shire Council v Shirt 146 CLR 40 at p. 47:-

“In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

87   The first question therefore, is whether a reasonable person in the position of the defendant in this case would have foreseen that the requiring of the plaintiff to gain access to and from Port Botany via the access road would expose him to a risk of injury.

88   The answer to this is clearly in the affirmative. It was a fact which was quite notorious that there was a major dispute between Patricks and the members of the MUA , that those members had formed picket lines along the access road together with other unionists the purpose of which was to prevent non union labour loading and unloading vessels at Port Botany.

89   The next question to determine is whether the defendant, in these circumstances failed to take reasonable care for the safety of its employees including the plaintiff.

90   I shall deal first of all with the events of 12, 13 and 14 April when the plaintiff went to and from Port Botany by bus.

91   On behalf of the plaintiff it is submitted that the defendant was negligent in requiring the plaintiff to go to Port Botany and that exercise of reasonable care required the defendant to call off the whole operation. In support of this argument it is pointed out that, certainly by 13 and 14 April, it was known that there would be violence directed at people going in and out of the Port and that the plaintiff had been personally identified and threatened.

92   Alternatively it is said that the defendant ought to have provided some other means of access to and from the Port such as by water or even by helicopter because Mr Corrigan (the Chief Executive Officer of Patricks) arrived at Botany Wharf by helicopter with a camera crew on one occasion.

93   Exhibit 3 points out that there were very good reasons from the view point of the defendant to have the wharves worked on 12, 13 and 14 April and for not calling off the operation.

94   In the first place there was loss of revenue from loading and unloading ships which could be as high as five million dollars per month at Port Botany. The vessel, Australian Endeavour, had already arrived at the Port for loading and unloading and after that a further vessel operated by the Columbus Line (a major customer of the defendant) was also due to arrive. In addition, unless operations continued, vessels would be diverted to other ports and competitors of the defendant and there could be delays in the movement of shipping leading to possible penalties, loss of income and extra costs occasioned where emergency arrangements had to be made. Furthermore there was the risk of cancellation of existing terminal contracts and general stevedoring contracts which for the year ended 30 September, 1997, generated revenue of approximately $270,000,000 for the Patrick group along with threat of permanent loss of clients to competitors in a highly competitive market. This possibility had already been flagged by the concerns expressed in recent communications with executives of shipping lines such as Blue Star, Columbus, Mediterranean Shipping Co. and NYK Shipping. The risk was said to be exacerbated by the fact that negotiations for the renewal of certain contracts were then either under way or shortly to be commenced.

95   Thus, viewed from the defendant’s aspect it was reasonable for it to take appropriate steps to have workers at Port Botany engaged in loading and unloading vessels.

96   From the viewpoint of the plaintiff, he was not kept in ignorance of the risks and likely consequences of going through picket lines. He was well aware even before the first entry on 12 April that picket lines would be in existence and that some degree of violence or antipathy would be vented upon those who sought to enter and leave the Port. Certainly by 13 and 14 April he was well aware of them.

97   It is in this context that one must look to see whether the defendant took all reasonable steps to safeguard the health and welfare of the plaintiff.

98   The steps actually taken by the defendant to safeguard may be summarised as follows:-

1. The plaintiff and others were required to meet at a secret location where they boarded a bus.

2. That bus was of solid, secure construction with shatter proof windows and a solid door.

3. Arrangements were made with the Police Service for a police car to escort the bus from the meeting place to the entrance to the Port and again from the entrance of the Port back to the meeting place.

4. Arrangements were made with the Police Service to assist with the passage of the bus through the picket lines down the access road both on entering and leaving the Port.

5. Arrangements were made for police to be present on the access road to facilitate the passage of the bus.

6. The access road was a public road and accordingly the defendant had no right to have its own security guards on that road. Crowd management had to be done by members of the police force.

7. Before entering the access road, directions were given to close the curtains of the windows of the bus.

8. The workers were provided with balaclavas.

9. On 12 and 14 April, Mr Hughes, the Port Manager, was present and walked up and down the aisle of the bus reassuring those in it. On 13 April, Mr Dougall the Assistant Manager was present providing similar reassurance.

10. An additional fence with a narrower opening had been erected outside of the normal perimeter fence so as to provide further security at that point. In addition some 50 metres of barricades leading into that opening had been erected to further facilitate crowd control at that point.

11. Black clad security guards with dogs were provided inside the perimeter of the Port.

12. The plaintiff and others were directed not to travel anywhere within the perimeter of the Port other than in a utility driven by a security guard.

13. When the plaintiff was concerned about taking the workers on board the Australian Endeavour because twistlocks had fallen on to the gangway, Mr Hughes, the Port Manager, came along and, defused the tension by speaking to the Captain of the ship and arranging for him to give directions to the ship's crew.

14. On each of the return trips from the Port to the meeting place Mr Dougall was in phone contact with the police and thus became aware of a vehicle following them. Arrangements were therefore made for a circuitous trip from the Port to the meeting place.

15. A police vehicle escorted the bus back from the Port to the meeting place.

16. On the afternoon of 13 April, 1998 when a vehicle had followed the bus back to the meeting place, Mr Dougall and others kept those seeking to attack the plaintiff away from him.

17. A plan of the Terminal area had been drawn on a whiteboard and various "no go" zones adjacent to the perimeter were indicated so that the plaintiff and others could keep away from those points.

18. As mentioned earlier, actions had been commenced in the Supreme Court seeking injunctions to restrain the MEU and its members from picketing in the access road.

19. All of these steps were designed to obviate the risk of injury to workers and drivers of the buses going in and out of Port Botany. To the extent that no one on the buses sustained any physical injury the steps taken by the defendant can be said to have been very successful.

99   When one balances out the very real interest that the defendant had for getting workers on to Port Botany plus the obvious risks of doing this on the one hand; and then takes into account the many and extensive steps taken by it to minimise or obviate risks of injury to the workers including the plaintiff on the other hand, one cannot be satisfied on the balance of probabilities that the defendant was guilty of any failure to take reasonable care in requiring the plaintiff undergo the experience of entering and leaving Port Botany along that access road and/or in failing to call off the whole operation.

100   I now pass to the submission of the plaintiff that the defendant was guilty of negligence in failing to have the people access the wharf by a means other than the access road.

101   It is submitted that they could have gained access to and from the Port by means of the water. The answer to this appears in exhibit 3 where it is stated in relation to Port Botany:-

“On 9 April passenger vessels which had been chartered to move new labour provided by PCS to the dock because of safety fears related to attempted road access, were harassed by vessels manned by PS1 employees who were MUA members in a manner which would appear to have been dangerous. Abusive language was directed to the new labour and at management and threats were made to the independent operators of the vessels to deprive them of future work.”

102   It is therefore quite clear that some three days before 12 April, attempts had been made to gain access to the wharf by water but that there was harrassment of the type described. Clearly the dangers arising out of confrontation on the water would be greater than those arising out of confrontation on land.

103   The suggestion that workmen should have been taken to and from the Port by means of helicopter is impracticable. Only one helicopter came to and from the wharf and that contained only a few people. There is no evidence that helicopters of a size sufficiently large to have carried the number of people concerned to and from the wharf were available. There is no evidence that landing facilities were available on the wharf to accommodate such a helicopter. There is no evidence that landing permission would have been given by the air traffic control authorities to such air traffic movements.

104   Under all of these circumstances the plaintiff has failed to satisfy me on the balance of probabilities that the defendant was negligent in relation to the plaintiff on 12, 13 and 14 April, 1998.

The Bolt Incident

105   I now pass to the allegation that the defendant was negligent on 12 April when the bolt broke through the windscreen of the utility truck in which the plaintiff was a passenger.

106   On the evidence before me it appears that this incident occurred when the plaintiff was a substantial distance from the perimeter fence and not within one of the "no go" areas specified in the plan drawn on the whiteboard to which reference has already been made. Indeed the distance was so far from the perimeter fence that it was believed that some form of catapult must have been used to propel the bolt. In my view this was an incident which could not reasonably have been foreseen and under those circumstances the plaintiff has failed to satisfy me that the exposure to the plaintiff of this particular incident was in any way due to the negligence of the defendant.

6 May, 1998

107   I now pass to the events of 6 May, 1998. It is quite clear that by this stage, much of the anger between the parties had abated but there was still a considerable amount in existence.

108   Although on 15 April and subsequently the plaintiff had told Mr Hughes in no uncertain terms that he was not going back to work he had, by 6 May relented and was in fact prepared to return to work as part of an advance party to check machinery at the Port on behalf of the defendant.

109   He was asked by the Secretary of the union of which he was a member, Mr Chapman, to form part of that party. But more importantly he was instructed that he was not to take his car in but to walk down the access road to the Port gate where he would meet the other members of that party. The evidence satisfies me on the balance of probabilities that in making that request, Mr Chapman was acting on behalf of Mr. Corrigan, the CEO of the Patrick group of companies, with whom he had met earlier that day.

110   The defendant's two senior staff member at Port Botany, namely Messrs Hughes and Dougall, were well aware of the serious effects the experiences of April 12, 13 and 14 plus the personal threats had imposed upon the plaintiff. They were well aware that threats of violence had been made to the plaintiff and to his family. They were well aware that the plaintiff was in fear of such threats. If Messrs. Corrigan, Hughes and Dougall did not actually know that some picketers were still present along the access road on 6 May, then they, with the exercise of reasonable care ought to have known it. They ought to have foreseen that if the plaintiff walked down that road there was a very real risk that he would be subjected to further abuse, threats and even physical violence. Yet, notwithstanding this, the defendant required the plaintiff to walk along that road in full view of the remnant of the picketers with no protection other than one police officer. What is even worse is that no police officer was available for the walk back although it then ought to have been known to the defendant that people were still present on the access road who bore animosity towards the plaintiff.

111   In making these requirements of the plaintiff in those circumstances, the defendant in my view was not merely guilty of failing to take reasonable care for the safety of its workmen, it was acting in a way which flagrantly disregarded his welfare. Under these circumstances I am comfortably satisfied that the defendant was negligent.

112   By this stage, the plaintiff had every reason to believe that he had been let down by his employer. He had every reason to be, as he said, "shattered". It is no wonder that his wife felt that he was so withdrawn that he could commit suicide and consequently made an appointment for him to see Dr Howe.

Damages

113   I now pass to the question of damages.

114   It is quite true that the plaintiff had said on Wednesday 15 April and subsequently that he was not going to return to work with the defendant. However his condition had improved by 1 May to the extent that he was prepared to attend the meeting convened by Mr Chapman. His condition had improved to the extent where by 6 May he was prepared to go back to work. His condition had improved by 6 May to the extent that he did in fact return to work, but it was his experiences on the 6 May that, in effect, were the last straw which broke the back of his psyche.

115   Fortunately the plaintiff sustained no physical damage as a result of the defendant’s negligence but he sustained quite severe psychiatric damage.

116   The first question to determine is whether it was reasonably foreseeable by a reasonably prudent employer that psychiatric injury could be inflicted on the plaintiff by the events of 6 May.

117   As pointed out earlier, the plaintiff had described to Mr Hughes in telephone conversations on 12, 13 and 15 April his concerns about entering and leaving the Port along the access road and the effects that those experiences had had upon him. It must have been readily apparent to Mr Hughes that the plaintiff was emotionally affected by those incidents. In these circumstances it was clearly reasonably foreseeable that being subjected to the experiences of 6 May would have an aggravating effect upon him and be highly likely to cause psychiatric injury.

118   In the light of decision of the Court of Appeal in NSW v Seedsman (2000 NSWCA 119), it is necessary for this court to consider the following questions:-

1. With what illness, if any, is the plaintiff now suffering.
2. Is this a psychiatric illness?
3. If so, was it caused or materially contributed to by the events of 6 May, 1998 whilst the plaintiff was walking along the access road to and from Port Botany?
4. Was such psychiatric injury a reasonably foreseeable consequence of such failure to take reasonable care?
5. If so, quantify the resulting damages.

The Plaintiff's Evidence

119   I shall deal first of the evidence of the plaintiff as to the effects upon him. His description of his feelings on arriving home on 6 May has already been mentioned. He said that on the next day, Thursday 7 May he did not want to talk to anybody. He was particularly angry and took it out on his wife. That day his wife told him - “You really have a problem but you can’t see it. I suggest you go and see Dr Howe." He then told her to make an appointment. He saw Dr Howe on Friday 8 May and was prescribed medication. He continued to see him over the next three or four weeks and finally it was suggested that he see a psychiatrist. The plaintiff had never seen a psychiatrist before this.

120   He first consulted Dr Roberts on 16 June, 1998. Initially the plaintiff was prescribed Aropax, an antidepressant which made him feel "like a zombie" until he stopped taking it. He had massive mood swings and was irritable. He was constantly thinking about what he had been through. He had nightmares nearly every night during the first four or five weeks. There was one particular nightmare in which he was in a big room with about six doors. Every time he opened up a door he saw faces and baseball bats and sticks and he had to use force to close the door. He would suddenly wake up sweating. His wife complained that he threw himself around violently during his sleep. He was irrational and moody towards his family members. He could not control his behaviour and this was upsetting him. He became verbally abusive and loud to his wife and daughter over nothing. When he thought about the way he had treated them he felt worse and would go into a shell and not talk to anyone. He felt unable to do anything physically. On hearing a sudden noise he would jump and feel his heart jumping through his chest. He would suffer palpitations and shortness of breath.

121   From the time that he had left school until May of 1998, the plaintiff had never been out of work. He just went from one job to the next. He wanted to get back to work.

122   The plaintiff testified that whenever he drove past Port Botany to reach his mother’s home at Chifley he suffered severe panic attacks. His breathing became uncontrollable. He had palpitations and his palms became very sweaty. To avoid these symptoms he took an alternative route to his mother's home.

123   He could never predict when panic attacks would occur. His breathing would accelerate when he saw a person whom he knew worked on the waterfront or when he was in a situation where he was put under pressure. Prior to 1998 he had never had any attacks of this type nor had he had any cause to seek any advice or help in relation to his mental state.

124   His only prior serious injury was at the age of 22 or 23 when he was the victim of a serious assault with a broken glass which had severed arteries and veins in his neck. However he had recovered fully from this without any psychiatric complications.

125   Sudden loud noises would bring on a panic attack. When he saw large cranes similar to those used on docks he would get a panic attack. If he was in any enclosed area he would feel sharpness of breath and as if he wanted to run. He could not stand being enclosed. He was behaving very irrationally. Since May of 1998 he found his concentration, alertness and ability were impaired.

126   He tried the medications prescribed by Dr Roberts but discontinued some because of adverse effects such as loss of coordination.

127   All of these symptoms combined to prevent his attempting to enter the work force until about June, 1999 when he bought a Toyota Town Ace panel van for use as a courier for $26,000. He then entered into an arrangement with Federation Couriers and was allocated work by them. He would deliver parcels from the depot at Alexandria mainly around the Redfern, Waterloo, Alexandria areas. By this stage he was taking only one medication namely half a Demavane on an average 3 nights per week. This is an antidepressant which helps him sleep and helps control his emotions. He found that his reaction time when driving was not as good as it had been before May 1998 and consequently he had accidents which had not occurred before that time. His driving was not as good.

128   The courier business lasted for about 13 months on and off. He stopped work at times because he felt he was stressed out and he could not control his emotions. He was having too many panic attacks while driving and considered himself a danger on the road. He found driving stressful. This had never occurred before April/May 1998 even though his responsibilities as a Supervisor were far more pressing and complicated than as a courier.

129   There were days when he could not work and other days when he could not finish his day’s work. In the latter situation, he would return to the base with whatever parcels had yet to be delivered, much to the concern of the employer. He became very agitated with himself. He felt he could not complete something that was simple. It was like he had a clock on and the time was always running out. He could not focus on where he was going. He could not focus on what he was supposed to do and he had to pull over to the side of the road and do breathing exercises.

130   He ceased the courier business at the end of July or August, 2000 and sold the van in January or February, 2001. Since then he had a part time job at Bexley Golf Club assisting the greens staff as a labourer 3 or 4 days per week for a few hours per day. This lasted for about four months.

131   The plaintiff gave evidence that he would be willing to try a permanent job at 4 or 5 days per week if it were outdoors with no stress and no confrontation. He described himself at present as negative, defeatist, and always waiting for something to go wrong. He was not like this before 1998.

In the future, the level of dysfunction should ameliorate but I would be surprised having regard to the circumstances under consideration that such would ever totally disappear but that psychological responses would over time decline to a level of discomfort and nuisance rather than incapacity.”

146   In a report dated 17 September, 1998, Fran O’Connor Psychologist recommended that the plaintiff be provided with psychological counselling support one hour per week and be reviewed in approximately 12 weeks time.

147   Dr Shand, psychiatrist, saw the plaintiff on 7 July, 1998. In his report of 11 July, he concludes that the plaintiff has been suffering from an Adjustment Disorder with depressed and anxious mood. He also expressed the view that there was no doubt that his employment had been a substantial contributing factor to his disorder and that he was not fit for his pre injury duties and probably never would be.

148   In a further report dated 15 May, 1999, Dr Shand expresses the view that the plaintiff’s Adjustment Disorder with depressed and anxious mood has been improving and was still doing so. At that stage the plaintiff was exploring the opportunity to work and handling his emotions and behaviour at home a lot better.

149   The plaintiff was reviewed by a further psychiatrist, Dr McMurdo, on 20 February, 2001. In a report dated 27 February, the doctor points out that at that time many of the symptoms had subsided and the plaintiff did not then meet the criterea for post traumatic stress disorder but he was still left with the problem of panic attack. He expresses the view that this disability arose in the course of the Plaintiff’s employment and was precipitated by the dangerous situation and the ongoing threats that occurred thereafter during the "Waterside Workers strike in 1998". He did not think that the plaintiff could ever work in the stevedoring industry again. He goes on to say:-

“When all litigation is finalised it is probable he will be able to re enter the work force but probably not in a job which involves a great deal of responsibility, at least initially. He would almost certainly need a course of retraining and rehabilitation to get back into the work force.”

150   I now pass to a consideration of the reports submitted on behalf of the Defendant from Dr Allan P White, Psychiatrist. In his reports Dr White expresses the view that the Plaintiff developed symptoms which were typical of panic disorder with agoraphobia. He goes on to say -

“Panic disorder is a constitutional psychiatric disorder (by which is meant a genetically related brain disorder) from which recovery can be anticipated within 6 to 12 weeks of compliance to a comprehensive treatment programme.”

151   To refer to the Plaintiff’s condition as a constitutional psychiatric disorder appears to me to be inconsistent with his pre injury history. As at April, 1998, the Plaintiff was 50 years of age. He had enjoyed a continuous work history since leaving school. His job involved a considerable amount of stress. Yet he had never before had any psychiatric problems. This of itself would throw grave doubts upon the accuracy of Dr White’s diagnosis. However, the very comprehensive and logical criticisms in the reports from Dr Roberts and Dr McMurdo support my scepticism of Dr White’s conclusions. I would add that Counsel for the defendant in final addresses said that he did not propose to address on Dr White’s reports.

152   Accordingly I am comfortably satisfied on the balance of probabilities that the Plaintiff from 6 May, 1988 onwards suffered a Post Traumatic Stress Disorder which then developed into an Adjustment Disorder coupled with Panic Attacks and that this has continued up to the present time. These are within the description of psychiatric illness.

153   The next matter to consider is which of the many stressors sustained by the Plaintiff between 12 April and 6 May caused or materially contributed to his subsequent condition. The medical reports seem to lump all the of the stressors including telephone threats within the cause. I have held that negligence existed only in relation to the events of 6 May, 1998. The question now to consider is whether the events of 6 May materially contributed to his current condition and if so to what extent.

154   As stated earlier there is no doubt that on 14 and 15 April the Plaintiff told Mr Hughes that there was no way he was going to return to work. However by 6 May he had recovered to the extent where he was prepared to return to work. He did walk on foot down that access road to the gate and he did check the machinery for some three and a half to four hours on Port Botany and then walked back. I am satisfied on the balance of probabilities that by the beginning of 6 May he had recovered to the extent where he was prepared to return to work and that it was the events of the 6 May which were the precipitating cause of all subsequent symptoms. Accordingly I would hold that the totality of his condition from 6 May 1998 onwards has been due to the negligence of the Defendant on that date.

Quantification Of Damages

155   The Plaintiff was born on 21 April, 1948. He was therefore 50 years of age at the time of the incidents the subject of this action and is now 53. He was educated in Sydney and left school with the Intermediate Certificate in 1963. For the next 7 years he worked in various unskilled and semi-skilled forms of jobs until he started as a waterside worker in 1970. For the next 28 years he worked in that occupation and gradually was promoted to the extent which has already been described. There is no doubt that over the years he built up many skills but those skills were related solely to the Waterfront. He cannot go back to that occupation. Accordingly he is a person with skills which are not readily adaptable to other forms of occupation. On top of this he is now 53 and therefore finds it difficult to get work.

156   The effects upon his enjoyment of life have been very dramatic. He had a job which he loved and which is now lost to him. He had peace of mind and happiness and contentment which are now severely impaired. It is true that there has been some improvement but there is nowhere near a return to normality.

157   Under all of these circumstances I assess the Plaintiff’s non economic loss as 38% of the maximum amount which may be awarded in a most extreme case. The maximum amount applicable is $228,350. 38% of this is $86,773.

158   As stated earlier I am satisfied on the balance of probabilities that on and from 6 May, 1998 the plaintiff was prepared to return to work and would have returned but for the events of that day and that he would have continued working for the defendant up to the present time.

159   In this context it should be noted that his entitlements to long service leave, superannuation and holiday pay were not in fact lost, even though he had earlier been led to believe that they were.

160 According to Exhibit C, as at the end of the 1996/97 financial year the plaintiff’s new gross pay was $108,323 p.a. plus a car valued at $14,000 per annum plus superannuation benefits of $7,527 and $169 per annum making a total package of $130,080 per annum. On a weekly basis this exceeds the amount which the plaintiff is entitled to recover by virtue of the Workers Compensation Act which stipulates a limit of $1,267 per week. Under these circumstances I propose to allow loss of earnings at the rate of $1,267 per week from 6 May 1998 to date which equals $236,929.

161   From this has to be deducted the amount of income received since 6 May, 1998 totalling $6,080 (being $3,294 from his courier business and $2,786 from Bexley Golf Club). Accordingly I allow for past wage loss the sum of $230,849.

162   On behalf of the defendant it has been submitted that one should not allow this full amount because the plaintiff has been capable of earning other monies in the meantime. In effect it is said that he has a substantial residual earning capacity. I am satisfied that the extent of his earning capacity since May 1998 has been limited to his actual earnings during that period and accordingly I allow the amount previously mentioned.

163   I also allow the value of superannuation which I calculate at 9% of the past economic loss which comes to $20,776.

164   The cost of treatment is agreed at $4,855.99 which is allowed in full.

165   The Fox v Wood component is agreed at $7,936.09.

166   I am satisfied on the probabilities that the Plaintiff will require some medical attendances in the future but not of any major significance. To allow for this I assess a cushion sum of $1,500.

167   The assessment of future diminished earning capacity is not a matter for arithmetical calculation. Rather it is a matter for judgment. The evidence clearly establishes that this Plaintiff can never go back to work on the Waterfront and so all the skills he built up over almost 30 years have been lost. However he does have some residual capacity which is not small.

168   Doing the best I can I propose to allow for future economic loss the total sum of $275,000. This represents a diminished earning capacity of a little under 50% calculated over 12 years using a multiplier of 5% per annum.

SUMMARY

To summarise, the allowances made are as follows:-

Non Economic Loss	86773.00
Past Economic Loss	230849.00
Past Superannuation Loss	20776.00
Past Treatment Costs	4855.99
Fox v Wood Component	7936.00
Future Treatment Costs	1500.00
Future Economic Loss	275000.00
TOTAL	627689.99

Orders

Judgment in favour of the plaintiff against the defendant in the sum of $627,689.99
I invite submissions as to costs
I certify that this and the previous 41 pages is a true copy of reasons for Judgment herein of the Honourable Acting Justice Cooper.
Associate to Acting Justice Cooper:
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Dated 6/12/2001
12/12/2001 note order under the Slip Rule.

Changes to allowances for past economic loss, past loss of superannuation and resulting reduction of the total to $610,604.32 pursuant to orders made 12/12/2001.

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Last Modified: 12/17/2001